TOWLES v. THE STATE OF NEW YORK, #2000-013-515, Claim No. 95807

Synopsis

Muslim inmates sued to recover damages for (1) being fed meat that was not Halal
during Ramadan; (2) receiving late notice of the start of Ramadan; and (3) being
deprived chaplain visits. Judge Patti held that: (1) the proof did not show
that the meat was not Halal; (2) the inmates received late notice of Ramadan,
but were not damaged because they fasted for an additional day; and (3) they
should have pursued their chaplain visit claims by commencing an Article 78
proceeding. The claims were dismissed.

Case Information

UID:

2000-013-515

Claimant(s):

RENÉ TOWLES

Claimant short
name:

TOWLES

Footnote (claimant name)
:

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

95807

Motion number(s):

Cross-motion
number(s):

Judge:

PHILIP J. PATTI

Claimant's
attorney:

RENÉ TOWLES, Pro Se

Defendant's
attorney:

HON. ELIOT SPITZERAttorney General of the State of New YorkBY: CAROL A. COCCHIOLA, ESQ.Assistant Attorney General

Third-party defendant's
attorney:

Signature date:

November 30, 2000

City:

Rochester

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

2000-013-516, 2000-013-517

Decision

Claimants René Towles, Baron Rowlett and Gary Worthy are inmates and
followers of Islam. They allege that Defendant violated their religious rights
during Ramadan by negligently feeding them food that was not Halal (religiously
acceptable) and by beginning the observance one day late. Claimants also allege
that Defendant violated their rights under the First Amendment to the United
States Constitution and Correction Law §610 by depriving them of weekly
chaplain visits with a Muslim Imam (spiritual leader).

Their claims, which are identical, arose in early 1997 when they resided in
A-Block at Southport Correctional Facility (Southport). At their request, which
Defendant did not oppose, I tried the claims together on August 11, 2000 at the
Elmira Correctional Facility.[1]

To facilitate the orderly trial of these pro se matters, Claimants chose
Claimant Towles to act as their spokesperson and agreed to be bound by his
testimony.

1. Religiously Acceptable Food

Mr. Towles has been a Muslim for approximately nine years. He explained that
Ramadan is a 30-day period of heightened religious observance. Devout Muslims
are supposed to fast from dawn until sunset and observe certain dietary
restrictions. Meat must be "Halal" or lawful, which means that it must be
raised, slaughtered and prepared for human consumption in accordance with Muslim
requirements.

Towles testified that he was familiar with the menu selection practices
followed by Defendant. At one time, the Muslim inmates in a facility could
choose their own menu for Ramadan. That practice ended in about 1995 when the
Department of Correctional Services adopted a statewide menu system. Under the
new system, Muslim inmates received the same selection of foods as other
inmates. The only difference was that the meat Defendant purchased for Muslim
inmates was supposed to come from a Halal vendor and the meal was supposed to be
prepared by Muslims in the Muslim way.

According to Towles, Muslims can distinguish Halal meat from regular meat by
looking at it and tasting it. Halal chicken, for example, "had more meat" than
the chicken usually served by the Department of Correctional Services and
"looked more like real chicken."

During the 1997 Ramadan, Towles and the other Claimants felt that the meals
they were receiving did not look or taste like the food they had eaten during
other Ramadans. There was also a "striking similarity" between the meals given
to Muslims and the food Defendant served to the non-Muslim population.

Claimants became concerned that their dietary requirements were not being met.
They started to ask Defendant's employees whether the meat had been prepared by
Muslims and whether it had been procured from a Muslim vendor. Towles and
Worthy also filed grievances on January 15, 1997. Facility officials and the
grievance committee assured them that the food met Muslim standards, but
Claimants were not convinced. They investigated the issue further and satisfied
themselves that the meals had been properly prepared by Muslims and in the
Muslim way. However, they remain convinced that the meat they consumed came
from non-Halal vendors.

In response to a Freedom of Information Act request, Defendant produced
disbursement requests and invoices relating to meat purchased and used during
the 1997 Ramadan. The receipts and invoices (Exhibit 4) showed: (1) that the
Imam's clerk issued, and Chaplain Fields approved, a disbursement request on
January 15, 1997 to pay Halal Meats and Markets of Binghamton for 70 3-pound
chickens with money from inmate account(s); (2) that SYSCO Food Services sold
Defendant 11 40-pound containers of "Packer Chicken Leg Quarters" and other
foods, which it was to deliver to Southport on January 6, 1997; and (3) that the
DOCS Food Production Center committed to deliver an undisclosed quantity of
"Halal" chicken quarters to Southport on February 12, 1997. Claimants point out
that there is nothing in the documentation which indicates that the "Packer"
chicken was Halal. Mr. Towles, who said that he regularly reads Muslim
publications that deal with dietary issues, asserted that he had never heard of
Packer. Claimants also pointed out that one of the orders is dated February 12,
1997, four days after Ramadan ended.

Mr. Jimmie Irizarry has been Food Service Administrator at Southport since 1988
and is responsible for supervising food preparation for all inmates, including
Muslims. He explained that Ramadan meals are supposed to look like the meals
served to the rest of the population. Beginning in 1997, the Department of
Nutritional Services required the Ramadan menu to be the same as the general
statewide menu. The only difference between the meals provided to Muslims and
those served to non-Muslims was that the meat was Halal and was prepared in
accordance with Muslim requirements. Halal meat is visually indistinguishable
from ordinary meat.

Mr. Irizarry explained the significance of the food service documentation from
the 1997 Ramadan (Exhibit 4). Muslim inmates, he said, funded the purchase of
the chickens ordered by the Imam's clerk from Halal Meats and Markets (Exhibit
4, p. 1). The Packer meat delivered on January 6 came to Southport through the
statewide procurement system (Exhibit 4, pp. 2-3). The Halal chicken quarters
delivered on February 12, 1997 (Exhibit 4, p. 4) came from the State freezer and
was intended for the February 15 feast that marked the end of Ramadan. All of
this meat, including the "Packer" meat, came in containers and packages that
bore the word "Halal."[2]

On cross-examination, Mr. Irizarry said that he did not know what Halal seal(s)
looked like, that he did not know whether the meat packages had to be stamped
with a Halal, and that he did not know what language appeared on the seal. He
explained that he relied upon the Imam's clerk, Mr. Kowalczyk, who is a
practicing Muslim and an inmate, to make sure that the meat Defendant fed to
Muslims was Halal and was prepared in accordance with Muslim requirements.

Having considered the issue carefully, I find for Defendant on the dietary
issues. Mr. Irizarry impressed me as a credible witness who is dedicated to
meeting the dietary requirements of Muslim inmates. I am persuaded by his
testimony that the meat that Defendant fed to inmates during the 1997 Ramadan
was Halal. I do not doubt the sincerity of Claimants' concern about the source
of the meat that they were eating, but I was not convinced the meals served to
Claimants were not Halal.

2. Delayed Commencement of Ramadan

The second part of the claims had to do with the accuracy

of the information Defendant provided about the start of
Ramadan.

One cannot determine when Ramadan will begin by looking at a calendar. It
starts with the sighting of the new moon and lasts for the 30 days that follow.
Mr. Towles and the other Claimants were not able to watch for the new moon while
they were in the Special Housing Unit. The facility had to tell them when the
moon became visible.

Mr. Towles testified that Claimants began fasting after they learned of the
start of Ramadan late in the day on January 10. They did not, however, receive
a Ramadan meal that night (

see, Towles' Claim, ¶6). On the day that the observance
ended, he realized that it had lasted only 29 days, or one day shorter than it
was supposed to have been. He maintained at trial that Ramadan was supposed to
have begun at sundown on January 9. His testimony is corroborated by the
1996-1997 Nutritional Services Ramadan Procedures Memorandum (Exhibit A ), which
indicates that the tentative starting date for Ramadan was sundown on January 9,
1997. However, another DOCS planning memorandum dated October 21, 1996
indicates that January 10 was the tentative beginning of the
observance.

Mr. Irizarry testified that he distributed the memorandum which announced the
beginning of Ramadan on the evening of January 10, 1997 and said that the last
day of the observance was February 8 (

see, Exhibit A).

Claimants have demonstrated that the Ramadan fast was shorter than it was
supposed to be. There were 29 full days of observance (January 11 - February 8)
and one day of partial observance (January 10). It is unfortunate that this
occurred. However, Mr. Towles' testimony, to which the other Claimants agreed
to be bound, demonstrates that Claimants suffered no damage or harm because of
this mistake. They were able to fulfill the requirements of their faith by
continuing the fast for an additional day and by avoiding food that required
special preparation requirements. For this reason, I conclude that Claimants
were not damaged by Defendant's error and that Defendant cannot be held
liable.

This brings me to Claimants' third and last theory:

3. Chaplain Visits

During Ramadan it is important, according to Mr. Towles, for inmates to be able
to consult with a chaplain who can answer questions about spiritual observance.
The visits are supposed to take place at least once a week, and the chaplain
should be a Muslim.

Sometime before the 1997 Ramadan, Southport revoked the privileges of Imam
Mussallihullah, the Muslim chaplain. The remaining chaplains were not Muslims
and, according to Towles, did not meet with the inmates on a weekly basis. In
fact, he and the other Claimants allegedly had only two visits between January 1
and March 10. One was exceedingly brief. Towles described it as a "drive-by"
visit. Chaplain Fields did not stop to talk. He simply asked "how are you
doing?" as he walked past each inmate's cell.

Special Housing Unit Directive No. 4933, which was in effect at the time,
provided that "[c]ounseling by a member of the facility's Ministerial Services
staff will be provided upon the written request of an inmate", and that "[t]he
facility Senior Chaplain or a designated member of the Ministerial Services
staff will be required to make a minimum of one round per week in the SHU"
(

see, Exhibit B).

Towles testified that Claimants submitted written requests for chaplain visits,
but Claimants did not have copies of their requests with them at trial. In the
January 15 grievances, however, Claimants Towles and Worthy complained that they
had not had a visit from a Muslim chaplain "for months." Towles asked for the
Head Chaplain to contact the Imam of the nearest Masjid and request his personal
assistance. He also asked that the Head Chaplain make rounds on all galleries
to consult with prisoners, particularly Muslims. Worthy asked for an Islamic
chaplain or the Head Chaplain to "counsel me once a week as per directive #4933"
(

see, Court's Exhibit 1).

Defendant responded to the two grievances but apparently did not address the
requests for chaplain visits. There is no evidence that Claimants Towles or
Worthy requested further consideration of this part of their grievance or that
they appealed the Grievance Committee's
decision[3]

(see, 7 NYCRR 701.7[b] and 701.7[c]).

Theresa Stanley testified that she became a Catholic chaplain at Southport in
November 1995 or 1996. For the first month and a half, she was the only
chaplain. Imam Mussallihullah was "positioned at Southport, but he was not
working there." However, she was able to call an Imam who worked at the Elmira
Correctional Facility if she had questions. In the absence of a resident Imam
at Southport, the Imam's clerk saw to the preparations for Ramadan. When
Reverend Fields joined the staff in December or January, he assumed
responsibility for Ramadan.

Defendant does not, according to Chaplain Stanley, station a chaplain
representing every recognized faith at each of its facilities. If a facility
does not have a representative from a particular faith, then the Coordinating
Chaplain at the facility can get advice from colleagues at other facilities who
belong to that faith. During the 1997 Ramadan, Reverend Fields was the
Coordinating Chaplain at Southport.

Chaplain Stanley testified that it is impossible for each chaplain to visit the
780 Special Housing Unit inmates once a week. The chaplains who currently work
at Southport each take one of the four blocks to visit each week. If the
chaplain assigned to a particular block is not of the inmate's faith and the
inmate wants to speak to the Chaplain from his faith, then the inmate can submit
a written request. Defendant has no record, according to Chaplain Stanley, that
any of the Claimants made a written request for a chaplain visit during the 1997
Ramadan. However, inmates also make verbal requests.

Before trial, Chaplain Stanley reviewed the log book for A-Block where
Claimants resided. According to Chaplain Stanley, it showed that she entered
the block 28 times and that Reverend Fields entered it 27 times between January
1, 1997 and March 31, 1997. Not all the visits would have been chaplain rounds,
however. Often she entered the block to see just one or two inmates. Much of
her time was spent helping inmates deal with family deaths or other personal
problems. Rounds were sometimes the least important part of her duties.

On cross-examination, Chaplain Stanley acknowledged that she did not know
enough about Islam to give a talk on issues from an Islamic perspective. She
also agreed that she did not know enough about Ramadan to respond to questions
about dietary issues, but said she could consult colleagues in the Department of
Correctional Services for help.

As noted above, Claimants allege that Defendant's failure to provide
appropriate access to a Muslim Imam violated their rights under the First
Amendment to the United States Constitution and Correction Law §610.
However, this Court lacks jurisdiction over civil rights causes of action
arising under the First Amendment to the United States Constitution and must
dismiss that portion of Claimants' claim (

Zagarella v State of New York, 149 AD2d 503, 504; DeLaRosa v State of
New York, 173 Misc 2d 1007).

Correction Law §610 affords inmates a limited right to spiritual advice
and ministration from a recognized clergy person of their faith:

The rules and regulations established for the government of the institutions
mentioned in this section shall recognize the right of the inmates to the free
exercise of their religious belief, and to worship God according to the dictates
of their consciences,... and shall allow religious services on Sunday and for
private ministration to the inmates in such manner as may best carry into effect
the spirit and intent of this section and be consistent with the proper
discipline and management of the institution; and the inmates of such
institutions shall be allowed such religious services and spiritual advice and
spiritual ministration from some recognized clergyman of the denomination or
church which said inmates may respectively prefer....

(Correction Law
§610[3]).

That right has been implicated here. Claimants have shown by a preponderance
of the evidence that they did not receive "spiritual advice and spiritual
ministration" from a Muslim Imam during the 1997 Ramadan.

They have also demonstrated that Defendant fell short of its internal directive
which required weekly chaplain rounds and personal visits upon request (

see, Directive No. 4933). Mr. Towles testified credibly that
there were only two chaplain rounds in Claimants' gallery between January 1 and
February 10, a contention that Chaplain Stanley did not dispute. Chaplain
Stanley said only that she and Chaplain Fields visited A-Block regularly, but
not that they had visited Claimants' gallery or that they made weekly rounds
during the relevant time. To the contrary, her testimony established that
chaplain rounds were often less important than other parts of her work and that
the chaplains were understaffed at the time this claim
arose.

I am satisfied, based upon Chaplain Stanley's testimony, that Claimants made no
written requests for chaplain visits. But I do not believe that this disposes
of the matter. I conclude that the Grievance Committee should have treated the
grievances that Claimants Towles and Worthy filed as requests for the chaplain
visits and should have notified the chaplain of the need for the requested
ministrations. Therefore, I conclude that Defendant deviated from that part of
its directive that gave inmates the right to chaplain visits upon written
request (

see, Directive No. 4933).

Finding that Defendant deviated from Correction Law §610 and from
Directive 4933 does not, however, mean that Defendant should have to respond to
Claimants in damages. To the contrary, Claimants should have pursued this
matter by first exhausting their administrative remedies through the inmate
grievance process (

See Decision and Order Filed October 13, 1999 (Motion No. M-59881 - Claim Nos.
95807, 95839, 95894 and 96141). The October 13 order indicated that a similar
claim brought by Mr. Jamel Allah would be tried with the Towles, Rowlett and
Worthy claims. Mr. Allah's claim was not tried with the others because he had a
parole hearing scheduled on the same day as the trial.

In a July 28, 2000 letter, SYSCO indicated that the meat was Halal and provided
an August 14, 1997 letter from the initial vendor certifying that the food was
Halal, under the supervision of the Halal Watch Industries and the American
Islamic Halal Council and Certification Board. Because these documents were
hearsay, I did not rely upon them in making my decision.

An August 7, 2000 memorandum to the Assistant Attorney General from the Inmate
Grievance Program Supervisor states that there was no appeal. Because this
document was hearsay, I did not consider its contents.